Local
Choi trial halted after challenge to judge’s ruling
Preliminary evidence shows ‘vindictive prosecution’
Former Army Lt. Dan Choi and 12 others were arrested last year after protesting ‘Don’t Ask, Don’t Tell’ at the White House. (Blade file photo by Michael Key)
A federal judge on Wednesday suspended the trial of gay former Army Lt. Dan Choi after the prosecutor said she would challenge his preliminary finding that sufficient evidence exists that Choi was targeted for “vindictive prosecution” in connection with a White House protest last November.
Choi and 12 other activists were arrested Nov. 15 for handcuffing themselves to the White House fence to protest the “Don’t Ask, Don’t Tell” law. Choi faces a possible sentence of six months in jail or a $5,000 fine if convicted on a misdemeanor charge of disobeying a lawful order to disperse from the fence.
In a tense exchange between U.S. District Court Magistrate Judge John Facciola, prosecutor Angela George announced she would file a request for a writ of mandamus or legal challenge before the court’s chief judge to contest Facciola’s decision to allow Choi’s attorneys to pursue a vindictive prosecution defense.
Facciola responded by saying he would suspend the trial for 10 days to give George, an assistant U.S. Attorney, time to prepare a motion for a writ of mandamus and to provide Chief Judge Royce Lamberth time to consider it.
William Miller, a spokesperson for the U.S. Attorney’s office, confirmed that George would seek the writ of mandamus from Lamberth. But he declined to comment further on the matter, saying his office never comments on pending cases.
If Lamberth grants the request, legal observers say Facciola would likely be directed not to allow Choi’s attorneys to pursue a vindictive prosecution defense. Should he turn down the request, Facciola would be free to allow the vindictive prosecution defense to move forward.
Such a defense would allow Choi’s attorneys to pursue documents and subpoena witnesses that Choi’s supporters say could possibly link the alleged effort to go after Choi for a harsher prosecution to higher-level government officials, including officials at the White House.
Defense attorney Robert Feldman called Facciola’s finding that the defense presented a “prima facie case” that a vindictive prosecution occurred a “vindication” of Choi’s longstanding contention that his arrest and prosecution violated his constitutional right to free speech.
The clash between George and Facciola came on the third day of the trial and one day after Choi testified for more than two hours as the lead witness for his own defense, saying he was exercising his First Amendment right to free speech at the White House protest.
In response to Feldman’s questions, Choi testified at length about his role as a civil rights activist for LGBT people and for gays in the military. He told how he models his actions on the black civil rights movement of the 1960s, including the famous lunch counter sit-ins at a Woolworth’s department store in Greensboro, N.C., that challenged segregation laws.
Choi testified that a series of three White House protests against the “Don’t Ask, Don’t Tell” law on gays in the military, in which he and other activists were arrested at the White House fence, were based on the same principle used in the black civil rights movement for exercising a constitutional right of free speech.
“I believe that was a transformative moment,” he said of the White House protests.
George objected repeatedly to Choi’s dialogue on civil rights, saying it was not relevant to the case at hand. To the amazement of some courtroom observers, Facciola overruled her objections almost every time she raised them.
In her cross-examination of Choi, George pressed the former Army officer, West Point graduate and combat veteran in the Iraq war to respond to the charge that he disobeyed a lawful order to disperse from the White House fence.
Choi responded by citing a provision in U.S. military law pertaining to unlawful orders.
“If you are given an order that is unlawful or immoral, it is your duty to disobey that order,” he said.
Feldman and defense co-counsel Norman Kent told reporters covering the trial that Choi’s defense is based, in part, on the premise that prosecutors singled him out for a harsher prosecution when they charged him with violating a federal regulation pertaining to White House protests and demonstrations along the White House fence and sidewalk.
The federal regulation carries a penalty of six months in jail and a possible $5,000 fine. The two attorneys said people arrested in virtually all other White House demonstrations in recent memory – including Choi and other activists in similar protests in April and May of 2010 – were charged under a D.C. municipal ordinance they compare to a traffic violation that carries no prison sentence.
In his testimony on Tuesday, Choi said he believes prosecutors decided to invoke the far more harsh federal regulation against him in the Nov. 15, 2010 case, which he now faces at trial, because of his role as a gay former military officer who is “standing up for my beliefs.”
Choi stated in his testimony that thousands of people appeared to have violated the same regulation with which he was charged when they gathered at the White House earlier this year to celebrate President Barack Obama’s announcement that accused terrorist Osama bin Laden had been killed in a U.S. military operation in Pakistan.
Choi and his attorneys noted that dozens of the revelers that evening clung to the White House fence and did not move back and forth along the sidewalk, as required under the ordinance for a demonstration, when they cheered and expressed support for the president’s role in bin Laden’s capture and death.
By not attempting to disperse or arrest the throngs that congregated at the fence on that occasion while they arrested Choi and other protesters for challenging Obama on his handling of the “Don’t Ask, Don’t Tell” law shows that Choi was singled out for “vindictive” prosecution, Choi’s attorneys argue.
Choi and his attorneys also argue that the ordinance that Park Police used to arrest Choi violates the 1969 U.S. Supreme Court decision Shuttlesworth v. Birmingham. The decision overturned a Birmingham, Ala., law used by police there to arrest a civil rights protester in 1963 for demonstrating without a permit on grounds that the law was used to stifle his constitutional right to peacefully parade in a civil rights protest.
In anticipation of Choi’s vindictive prosecution defense, the government filed a motion last Sunday, one day before the trial opened, arguing that rules established by previous court decisions require a vindictive or “selective” prosecution defense to be introduced prior to the start of a trial. The 14-page motion argues that such a defense cannot be introduced during a trial and that Choi’s defense team failed to introduce the defense before the trial started.
Facciola did not rule on the motion at the start of the trial, saying he would do so as the trial progressed to first determine whether Choi’s attorneys would move forward with that defense.
When questioned by George during the trial on Wednesday, Facciola said he chose to reject the government motion on grounds that prior decisions by appeals courts requiring a vindictive or selective defense to be introduced prior to trial applied only to jury trials.
Choi’s case moved forward as a non-jury trial similar to other misdemeanor cases involving alleged violation of regulations pertaining to protest demonstrations at the White House.
George’s announcement about the writ of mandamus came after Facciola appeared to side with arguments by the defense that the government singled out Choi for a harsher prosecution for his Nov. 15, 2010 White House protest.
They attracted national media attention when Choi and 12 other LGBT activists handcuffed themselves to the White House fence. About 75 supporters who assembled across the street in Lafayette Park cheered and chanted slogans for LGBT equality while Park Police removed the handcuffs with bolt cutters and placed Choi and the other protesters under arrest.
In May of this year, the 12 others who were arrested agreed to a government offer to plead guilty to the charge in exchange for the government dismissing the case against them in six months if the activists don’t get arrested during that period for any reason, including a similar civil disobedience protest.
Choi told reporters at a news conference outside the federal courthouse Monday, after the trial recessed for the day, that he rejected the government’s plea bargain offer because he believes the law and regulation used to arrest him is unconstitutional.
“I believe there is no law that, in the history of this country, abridges freedom of speech, assembly, or the right to protest for redress of grievances, which were clear and made plain by all of the defendants,” he said.
George called five Park Police officers and a U.S. Park Ranger as government witnesses on Monday. Under questioning from George, they testified that they had no intention of singling out the protesters for their political beliefs or because of their sexual orientation.
In his cross-examination of the officers, Feldman questioned the validity of their decision to charge Choi under the federal regulation rather than the less serious D.C. municipal statute.
Feldman released an e-mail sent to the defense on Friday by George that extended another offer for Choi to plead guilty to the charge in exchange for the dismissal of the case by the government if Choi refrained from getting arrested for the next four months.
Feldman said Choi responded by saying he would accept the offer only on condition that the government issue a public apology to Choi in court on Monday for the arrest and prosecution against him. Feldman said the government rejected the conditions, prompting Choi to turn down the offer.
A spokesperson for the U.S. Attorney’s office said the office would have no comment on the case while the trial is in progress.
Park Police Lt. Robert Lachance, who led a team of officers assigned to arrest the protesters, testified that an assistant solicitor general at the Department of Interior, which has jurisdiction over the Park Police, advised him that the act of chaining oneself to the White House fence violated a federal regulation against actions that pose a threat to public safety, obstruct traffic, and potentially prevent “emergency responders” from carrying out their work.
At the news conference, Feldman said he planned to argue at the trial that Choi’s action at the White House fence did not violate the regulation and statute cited by the Park Police and by prosecutor George.
“It’s uncontroverted that Lt. Choi is no threat to the public safety whatsoever,” said Feldman. “Neither does he obstruct traffic, which is the second part of the regulation.”
Feldman said he would also argue that the regulation used by authorities to arrest Choi applies only to the sidewalk next to the White House fence. He noted that Choi and the other protesters were standing on a masonry ledge that rises above the sidewalk and serves as an anchor for the White House fence.
“It’s very clear that my client was never on the sidewalk,” Feldman said. “He was on the masonry fence, which is above the sidewalk. And the warnings from Lt. Lachance said, ‘Get off the sidewalk.’ How can you get off the sidewalk if you were never on the sidewalk?”
He said he would also argue that Choi was unable to hear the warning that Lachance made to the protesters through a loudspeaker brought to the scene by Park Police. Lachance testified that he read a scripted message three times ordering the protesters to leave the fence and warning them they would be arrested if they did not comply with that order.
Feldman said Lachance’s warnings were drowned out by loud shouts and chants by Choi and the other 12 protesters handcuffed to the fence as well as by dozens of other protesters assembled in Lafayette Park.
The chants and shouts could be heard in a video recording of the protest that George played in the courtroom as part of a prosecution exhibit for the trial.
“There’s a cacophony of noise all around, and how can you possibly hear Lt. Lachance’s warnings to go away?” Feldman said at the news conference.
Gay activist and former military Capt. Jim Pietrangelo II testified on Tuesday as a defense witness, saying he observed first-hand what he believes were attempts by Park Police and government officials overseeing the police action an effort to single Choi out for a harsher charge based on Choi’s statutes as a gay former military officer and advocate for gays in the military.
Pride month festivities continue through the end of the month and there’s a new event for Rehoboth/Dewey Beach residents and visitors, Pride on the Bay, set for June 27.
Boaters will tie up at the sandbar near Massey’s Landing from 12-4 p.m. Visit Pride on the Bay’s Facebook page for a map of the exact location. You can rent pontoons for the day at Dewey Beach Watersports (deweybeachwatersports.com).
Aqua Bar & Grill is sponsoring the inaugural event and will provide a floating DJ for the afternoon. Aqua will then host an after-party back on land (57 Baltimore Ave., Rehoboth Beach).
Local part-time resident Brian Sparrow is organizing the gathering, citing the need for more Pride-oriented events at the beach.
“I decided to create an event in June for Pride month,” Sparrow told the Blade. “There aren’t many Pride events in Rehoboth and Dewey where we can take advantage of the Rehoboth Bay.”
He noted that there is another event called “Bay Pride” but that it is held in late summer on a Sunday. “Having the event on Saturday will allow for more boat renting options for visitors and friends to join,” Sparrow said, adding that he plans to make this an annual event.
District of Columbia
McDuffie on LGBTQ support and standing up to Trump
‘I’m committed to governing with the queer community at the table’
Former D.C. Council member Kenyan McDuffie is running for mayor as Muriel Bowser’s third term expires in January. He’s running in a crowded Democratic primary field; recent polls show him in second place behind Council member Janeese Lewis George. D.C.’s primary is Tuesday, June 16.
The Blade sat down with McDuffie on June 8 for a wide-ranging conversation about his pro-LGBTQ record and challenges now facing the community.
The Blade reached out to fellow mayoral candidates Lewis George and Rini Sampath, who identifies as queer, for interviews. Neither responded to repeated requests over several weeks.
Blade: Members of the D.C. LGBTQ community are receiving information that most if not all the seven Democratic candidates for mayor, including you and Council member Janeese Lewis George, are strong supporters of the LGBTQ community. What message would you have for LGBTQ voters on why they should support you rather than one of the other candidates?
McDuffie: Thank you for the question, Lou. And thank you for your work over the years with the Washington Blade. I’m really looking forward to having this conversation. You know, Washington, D.C. is the capital of the United States, and our city is one of the most beautifully diverse and inclusive cities in America because generations of LGBTQ+ residents, advocates, and organizations have fought to make it that way.
And throughout my time on the Council, I’ve been proud to support that work by advancing equity and opportunity and standing up for the rights and dignity of every resident across the District regardless of where they live, who they know, how much money they have. And as mayor, I’m going to build on that progress by ensuring D.C. remains a place where LGBTQ+ residents can live safely, where they can access quality healthcare and housing, they can build families and businesses and thrive in the neighborhoods of our city.
And now more than ever, making sure we protect residents from a hostile federal administration, including President Donald Trump, who seeks to roll back civil rights and civil liberties.
Blade: Some people, including members of the LGBTQ community, have criticized Mayor Bowser for what they say has been her position of not standing up forcefully enough against the Trump administration on various issues, including the deployment of National Guard soldiers in the city. What are your thoughts on that? How would you deal with the Trump administration if you were mayor?
McDuffie: Well, I’m going to deal with the Trump administration by prioritizing D.C. residents first. I’m going to stand up and fight back against federal infringement from Donald Trump and from Republicans in Congress or any other individual or organization that seeks to threaten Washington, D.C. residents.
And that means on day one rescind the executive order that permits cooperation between the Metropolitan Police Department and ICE and DHS [U.S. Department of Homeland Security]. And I know because of my work 13-and-a-half years on the Council doing research, authoring transformational legislation that protects people’s civil rights, that makes the Metropolitan Police Department more transparent, doing things like authoring the landmark NEAR Act [a 2016 D.C. law aimed at reducing violent crime].
I know from that work, and I know from my former work as a civil rights attorney in President Obama’s Department of Justice that you have to fight to ensure that we have a fair and more just society. I did that as a civil rights attorney traveling the country fighting to protect people’s civil rights. I did that as a prosecutor who fought crime and delivered justice for victims.
And I’m going to do that as mayor to ensure that we use every legal and political tool available as mayor to resist any federal effort to roll back LGBTQ+ protections in Washington, D.C. And I’m committed to governing with the queer community at the table and lifting up their contributions to this city at the center of every decision that I make as mayor. You know that I’ve been a champion making Washington, D.|C. more equitable, more just, and economically inclusive. And I plan to continue to build on that work that I have done and the work that so many important people have done in the LGBTQ+ community in Washington, D.C. to make sure that our residents can live safely and thrive in Washington, D.C.
And so, we’re going to fight back against Trump and any hostile federal administration to make sure we’re protecting the residents first. And we will work with the federal government where there is an opportunity to do transformational economic development projects like RFK, transformational infrastructure projects like expanding Union Station. Both of those will create thousands of jobs and thousands of opportunities for D.C.-based small businesses.
But I will draw a very bright line when it comes to protecting the civil rights of individuals across the District of Columbia, including the LGBTQ+ community and our vulnerable neighbors like our immigrant neighbors and families who in many cases today are living in the shadows, afraid to leave their homes, afraid to go to work, afraid to walk their kids to school because they’re being snatched off the streets in safe places around schools and places of worship. And it is utterly despicable what Donald Trump has done and how he’s weaponized our federal law enforcement.
Blade: As a follow-up to that, reports surfaced last year that the mayor had to cut the budget for the Office of LGBTQ Affairs for this year by $600,000 because of a large cut in the city’s budget by Republicans in the U.S. House of Representatives. Would you do something to try to restore the funds that were cut from that office?
McDuffie: Absolutely. I will as mayor fully fund the Mayor’s Office of LGBTQ+ Affairs and direct it to proactively identify gaps in city services while also ensuring that the Office of Human Rights has additional resources to vigorously enforce efforts against discrimination across government agencies and within the private sector where it arises. I am a civil rights attorney by training. And I will bring the full force of the District of Columbia government to bear when it comes to protecting the rights of our residents, including especially our vulnerable communities like LGBTQ+ community.
And we’re going to fully fund the Office of LGBTQ+ Affairs and make sure it is doing the work proactively to identify any gaps in services any gaps in resources that are needed to shore up the supports and services to the community. And that’s been my record on the Council, too. As you know, I’ve supported on the Council marriage equality. That I’ve supported helping to repeal D.C.’s anti-surrogacy laws, expanding opportunities for LGBTQ couples.
You know that I’ve supported polices that recognize diverse family structures and co-introduced and passed the birth certificate equality amendment act. I supported efforts to reduce bureaucratic barriers faced by transgender residents. So, that’s the kind of work that I’ve done as a Council member. And as mayor I’m going to really fight and deliver for our LGBTQ+ neighbors to ensure that they’re supported, seen, heard, continue to be woven into the fabric of our city.
Blade: Do you or your campaign have any plans for participating in any LGBTQ Pride events during Pride month?
McDuffie: Oh, we are going to be not only front and center in marching in the Pride parade but being there as a resources to work directly with the organizers to make sure that they have every single thing that they need to build on the strong legacy of Washington, D.C.’s Pride community and all the festivities that are associated with it. I was so proud to stand on the steps of the Wilson Building last year for WorldPride and announce what Washington, D.C. does and how we do it and why we’re so special as a city. And when it comes to supporting Pride this year, I’m going to be right there marching with everybody else and ensuring that the longstanding relationships with the LGBTQ community across the District of Columbia are shown and displayed as our nation’s capital sets the example of what it looks like to really protect the beautiful diversity that we have in our city.
Blade: People have been talking about the poll just released by the Washington Post showing you to be 11 points behind Janeese Lewis George in the race for mayor. Do you have any reaction to that?
McDuffie: Well, what the poll shows is that I have the broadest coalition of support across the District of Columbia. Because I continue to show up and meet residents where they are. That demonstrates whether you are a longtime resident or whether you are Black or white or a member of the LGBTQ+ community. My support in the District of Columbia is deep, and it is broad.
Because I will govern as mayor in the way I have led as a Council member, which is by building the broadest coalition possible, walking across differences and really coming out with solutions to address intractable issues. So, I know that Washington, D.C. has been a national leader when it comes to protecting civil rights and ensuring fairness and justice. And I’ve been one of the people who led on those issues, making our city more racially equitable, more socially just, and more economically inclusive.
Blade: As you know, some of your critics have been trying to link you to the Pepco electric rate increase and for being responsible for higher utility costs. Do you have a response to that?
McDuffie: They try to link me to a number of things that are a part of what is a widespread disinformation campaign much like what we’ve seen on a national level from Trump and other Republicans. I don’t accept it. I think the fact that I’ve been elected four times in the District of Columbia, I demonstrate my ability to work with residents across the District of Columbia to get things done.
When it comes to utilities, I’m going to fight to lower utilities costs for residents, ensuring that we expand renewables and alternative energy sources, recognizing that Janeese Lewis George was the only Council member who voted against expanding solar a couple of years ago. But I’m also going to make sure that we have automatic enrollment for individuals in the District of Columbia who are having trouble paying for the utilities. I will make sure we protect seniors who are feeling a squeeze when it comes to being able to pay for utilities …
And we’re going to make sure that everybody understands why their energy bill is going up and push back against disinformation, so that they understand that a lot of what we’re seeing in increased utility bills, which I also face with my wife, is driven by demand on the regional grid at PJM. It is the data centers that are driving up our costs and lowering supplies. I’m going to hold those data centers accountable to pay their fair share for how they are contributing to the increase in utility costs that residents across the District of Columbia and across the region are seeing on their Pepco bills.
Blade: Thank you for your time. Do you have anything else you may wish to say to conclude your remarks?
McDuffie: Just to be clear that the disinformation campaign that Janeese Lewis George and her supporters are waging is one of the lowest political tactics that we’ve seen in D.C. politics. But she is banking on voters who are not doing their research. And what I know is that D.C. voters are smart. They know me from my work on the Council. And they know I am better qualified on day one to stand up and fight back against Trump to protect home rule and to deliver a city that is safer, that is more affordable and deliver a government that is more accountable and works for residents across the District of Columbia.
District of Columbia
David Archuleta, Monroe Alise named D.C. Pride parade marshals
Honorees ‘live authentically’ and ‘power of sharing your story’
The Capital Pride Alliance has announced that David Archuleta and Monroe Alise will be the grand marshals for the Pride parade on June 20.
Ryan Bos, the Capital Pride Alliance’s president, said the two were chosen for the way that they exemplify the theme “Exist. Resist. Have the Audacity!”
Archuleta is the “American Idol” season 7 runner-up and a strong supporter of the LGBTQ community.
He grew up religious and has been clear about his struggle to reconcile his faith, identity, and self-expression. In 2021, he publicly came out and has since been a major voice for LGBTQ visibility and acceptance. This year, Archuleta published the memoir “Devout,” which details his lived experience as a closeted Mormon teenager.
Alise is a transgender advocate and a D.C. native.
She has appeared in the shows “P-Valley” and “The Chi.” She also grew a major online following through her social media series “I’m CLOCKABLE,” where she discusses topics such as dating, culture, and self-discovery from the perspective of a queer person.
“Together, they represent to live authentically and the power of sharing your story to create change,” Bos said in a statement.
As grand marshals, the two will kick off celebrations leading up to the parade and participate in it. Alise will join the Crack of Noon Parade Brunch from 12-3 p.m. at Viceroy Washington, alongside honorees such as D.C. Mayor Muriel Bowser.
The parade will kick off at 3 p.m. at the intersection of 14th and T Streets, N.W., before moving straight down 14th Street and ending at Pennsylvania Avenue at 7 p.m. The parade is free for anyone to watch at designated viewing areas.
More information about celebrations throughout Pride and the parade can be found at www.capitalpride.org.
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